Opinion
14-P-537
07-24-2015
R.J.L. v. WILLIAM H. MAYER; WAYNE P. TUPPER, third-party defendant.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case arises from the appointment of the defendant, Attorney William H. Mayer, as guardian ad litem and guardian for R.J.L. pursuant to G. L. c. 208, § 15. R.J.L. by his next friend and daughter, Lisa M. Siegel, filed an action in the Superior Court for negligence, negligent infliction of emotional distress, and violations of G. L. c. 93A, as a result of Mayer's work on his behalf. Mayer filed a motion for summary judgment on the ground that as guardian ad litem and guardian he was acting in a quasi judicial capacity and therefore is entitled to absolute immunity from suit. The motion was denied and Mayer has appealed pursuant to the doctrine of present execution. See Brum v. Dartmouth, 428 Mass. 684, 688 (1999). We affirm.
Background. We summarize the facts in the light most favorable to R.J.L., the nonmoving party. See Doe v. XYZ Co., 75 Mass. App. Ct. 311, 312 (2009). Between 2006 and 2008, R.J.L. and his former wife (Helen), were involved in divorce proceedings. A judgment of divorce nisi was entered on November 20, 2007, and a judgment absolute was issued on May 21, 2008, nunc pro tunc November 20, 2007. Pursuant to the judgment, R.J.L. was required to transfer ownership of two business entities to Helen "free and clear of all debts, claims and liabilities" with the exception of nine parcels of real estate which he was allowed to transfer to himself or his designee. On January 31, 2008, Helen filed a complaint for contempt alleging that R.J.L. had failed to transfer ownership of the businesses. While the complaint was pending, R.J.L. filed a motion seeking the appointment of a guardian ad litem under G. L. c. 208, § 15. On March 6, 2008, the probate judge who had granted the divorce found that R.J.L. was incapacitated by reason of mental illness and appointed Mayer guardian ad litem "during the pendency of the Complaint for Contempt." The appointment was subsequently amended, sua sponte, on March 31, 2008. The sua sponte order read as follows: "The Guardian for [R.J.L.], William Mayer, Esq. shall act as [R.J.L.'s] Guardian for any and all proceedings pending before this Court until a determination is made by this Court that he is no longer incompetent to proceed on his own behalf." Meanwhile, the judge had also scheduled an evidentiary hearing on Helen's complaint for contempt, which was held on April 7, 2008. At the hearing, R.J.L. was represented by the same attorney who represented him throughout the divorce proceedings, Wayne P. Tupper, and Mayer testified at the hearing in his role as guardian.
General Laws c. 208, § 15, as amended by St. 1987, c. 522, § 11, provides: "If during the pendency of an action for divorce the defendant is incapacitated by reason of mental illness, the court shall appoint a suitable guardian to appear and answer in like manner as a guardian for an infant defendant in any civil action may be appointed. The compensation of such guardian shall be determined by the court, and, together with his necessary expenses, shall be paid by the plaintiff if the court so orders."
Throughout these proceedings R.J.L. was incarcerated for, among other things, attempting to murder Helen.
The full transcript of the hearing has not been provided to us.
Thereafter, during the month of July, 2008, Mayer took the following actions, among others, on behalf of R.J.L. First, on or about July 14, he accepted service of process of a summons on a second complaint for contempt filed by Helen on July 3, 2008. Second, on or about July 18, he visited R.J.L. at the Worcester County house of correction at which time he identified himself as R.J.L.'s attorney. Finally, by letter dated July 28, Mayer informed Tupper that Tupper's services were no longer required.
The letter stated in part: "I [Mayer] do not expect you [Tupper] to appear or play any role. I have no money to pay you or anyone else."
The judge found R.J.L. to be in contempt of the divorce judgment and, in an order dated August 11, 2008, divested R.J.L. of his right, title, and interest in the two aforementioned business entities including ownership of the nine parcels of land which R.J.L. was originally entitled to retain for himself or his designee. Mayer, as R.J.L.'s guardian, was ordered to effectuate the transfer of the businesses, which he did on or about September 4, 2008.
The gravamen of R.J.L.'s claim is that Mayer exceeded his role as guardian and guardian ad litem and assumed the role of attorney and then failed to adequately defend him against Helen's (second) complaint for contempt which, in turn, caused R.J.L. to loose ownership of nine parcels of real estate and suffer consequential damages. As noted, Mayer moved for summary judgment, asserting that he is entitled to immunity because the claims against him arise out of the performance of his duties as R.J.L.'s guardian and guardian ad litem.
Discussion. Summary judgment is proper when, "viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The moving party must establish (1) that there are no genuine issues of material fact, and (2) that the nonmoving party has no reasonable expectation of proving an essential element of its case. Miller v. Mooney, 431 Mass. 57, 60 (2000).
Our cases hold that to determine whether an individual is acting in a quasi judicial capacity we consider "the function [the individual] performed and its essential connection to the judicial process." LaLonde v. Eissner, 405 Mass. 207, 212 (1989). Put another way, we must look to the specific duties that Mayer was asked to perform that gave rise to R.J.L.'s claims to determine whether immunity is warranted. See Sarkisian v. Benjamin, 62 Mass. App. Ct. 741, 744-745 (2005). Assuming without deciding that Mayer did not exceed the scope of his authority as guardian in connection with the complaint filed on January 31, 2008, we note that R.J.L.'s claims of negligence and other torts do not appear to arise from Mayer's conduct with respect to that complaint. Rather, as we understand the record, R.J.L. asserts that he was harmed by Mayer's performance or nonperformance of his duties in connection with the second complaint for contempt, filed on July 3, 2008. Indeed, the docket entry of the judgment of contempt which is the linchpin of R.J.L.'s complaint reads: "Judgment dated 08/11/2008 on contempt filed July 3, 2008."
We have not been provided with copies of the complaints for contempt or the docket of the proceedings in the Probate and Family Court. We obtained a copy of the latter on our own.
Mayer has not met his burden of showing that he is entitled to immunity from suit because the summary judgment record is devoid of any information from which we can ascertain what actions he undertook in connection with the complaint for contempt filed on July 3, 2008, that resulted in the loss of property as reflected in the judgment of contempt dated August 11, 2008. We therefore conclude that there are genuine issues as to material facts and, as a result, Mayer's motion for summary judgment was properly denied.
Order denying motion for summary judgment affirmed.
By the Court (Vuono, Milkey & Blake, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: July 24, 2015.